74 N.C. 600 | N.C. | 1876
The plaintiff filed the following affidavit, to-wit:
"John B. Sharpe, the plaintiff above named, being duly sworn, says:
1. That he is now the owner, and entitled to the immediate possession of the fellowing [following] described property: one bay horse about twelve years old.
That said property is wrongfully detained by one Hardy Pearce. That the alleged cause of detention, according to this plaintiff's best knowledge, information and belief, is as follows:
That sometime during the early part of the current year, he sold to one W. E. Miller a certain sorrel horse, and that the said Miller executed to the plaintiff a lien or mortgage on the said sorrel horse, to secure the payment of the purchase money for the same. That since this first sale, the said Miller traded off the said sorrel horse for another, with the approval and understanding of and with the (601) plaintiff, that his lien or mortgage was to be held by him on the same, or that the horse traded for was to stand in the place of the said sorrel horse. That notwithstanding this understanding, the said Miller, without the knowledge and consent of the plaintiff, has made another trade for a horse, almost worthless.
Wherefore the plaintiff demands that the said bay horse be taken from the defendant and returned to him. *451
That said property was not taken for tax, or fine, or assessment pursuant to a statute, or seized under attachment or execution against the property of deponent.
That the actual value of said property is about one hundred dollars. That the plaintiff is about to commence an action in this court for the recovery of the possession of said personal property, the summons in which action being hereunto annexed."
The Clerk ordered that the said bay horse be delivered to the plaintiff upon his filing the undertaking required by law.
To this affidavit, used as a complaint, the defendant demurred, assigning as the grounds thereof:
1. That it does not appear that the plaintiff had any mortgage, trust or lien of any kind upon the horse demanded in the complaint.
2. It does not appear that the defendant had notice of any mortgage, trust or other lien existing against the horse demanded in said complaint.
On the hearing, after argument, his Honor sustained the demurrer, giving judgment in favor of defendant and dismissing plaintiff's complaint with costs.
From this judgment the plaintiff appealed. The plaintiff sold and delivered to Miller a sorrel horse, at the same time taking a mortgage upon the same horse and other property to secure the purchase money and other debts. (602) Miller, the mortgagor, afterwards traded the horse for another — a bay horse about twelve years old, with the consent of the plaintiff and with the understanding that he should stand in the mortgage in the place of the sorrel. After this, the mortgagor traded off the bay horse to the defendant for another horse alleged to have been worthless; whereupon the plaintiff brought his action of claim and delivery against the defendant for the bay horse.
The only description of the horse given in the plaintiff's mortgage is, that Miller "does by these presents bargain, sell and convey to the said John B. Sharpe, and his heirs and assigns one horse," etc. The demurrer admits these facts, and the question raised is, whether the plaintiff can maintain his action. The trade of the sorrel horse for the bay with the assent of the plaintiff, vested the title of the bay in the mortgagee, as against the mortgagor, but how did it affect third persons without notice? The defendant Pearce traded for a bay horse; the mortgage was of a sorrel. The very purpose of the registration laws was to *452
prevent frauds upon creditors and purchasers, by requiring that the deed must describe the subject matter of the conveyance, so as to denote upon the instrument itself, what it is in particular, or refer to something else to make it certain. Kea v. Robeson,
To hold that such a mortgage is valid, and constructive notice to the defendant, would be to hold that the registration laws, which were (603) designed to prevent fraud, were themselves a trap and a fraud upon honest purchasers. Against third persons without notice, the mortgage did not embrace the bay horse and the plaintiff had no title as against the defendant. We do not think Hubbard v. Winborne,
There is no error.
PER CURIAM. Judgment affirmed.
Cited: Spivey v. Grant,
